Corbett to state Supreme Court: Undo fracking ruling

HARRISBURG — Environmentalists and municipal officials have been celebrating a Pennsylvania state Supreme Court decision striking down key elements of a 2012 law that eliminated local zoning laws in favor of statewide regulations that allowed energy companies to dig gas wells anywhere they wished.

But the court's Dec. 19 decision invalidating most of Act 13 — a signature piece of Gov. Tom Corbett's jobs and economic policy — was no ordinary zoning ruling to settle a run-of-the-mill lawsuit.

The court's 4-2 majority decision set a landmark constitutional precedent for Pennsylvania.

That precedent — which the Corbett administration now wants the court to reconsider — could have far-reaching legal, policy and political ramifications beyond where wells and drilling equipment can be located.

A misstep by the state's legal defense team opened the door for the Supreme Court to set the precedent, which was based on a literal reading of the Pennsylvania Constitution's guarantee that citizens have a right to natural resources, court records show.

Writing for the majority, Chief Justice Ron Castille said Commonwealth Court was correct when it ruled the state could not supersede local zoning laws related to natural gas drilling. But Castille also said Commonwealth Court was wrong to reject a claim by the plaintiffs that Act 13 violated the state Constitution's Vietnam-era amendment guaranteeing Pennsylvanians the right "to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment."

The amendment (Article 1 Section 27) says the commonwealth must guarantee people's environmental rights, Castille wrote. So the governor and Legislature did not have the right to adopt statewide regulations that abolished local drilling-related zoning laws municipalities had created to ensure all property owners can leisurely and financially enjoy their land, Castile wrote.

"The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it," Castille wrote. "The Commonwealth's efforts to minimize the import of this litigation by suggesting it is simply a dispute over public policy voiced by a disappointed minority requires a blindness to the reality here and to Pennsylvania history, including Pennsylvania constitutional history; and, the position ignores the reality that Act 13 has the potential to affect the reserved rights of every citizen of this Commonwealth now, and in the future."

That decision has been criticized as too liberal, Duquesne University law professor Bruce Ledewitz said. But the ruling, issued by Republican Castille and three Democratic justices, was the type of literal constitutional interpretation advanced by conservatives like U.S. Supreme Court Justice Antonin Scalia, Ledewitz said.

"It was a Scalia original," said Ledewitz, a constitional scholar. "Castille made the claim — the people who wrote and adopted this amendment really meant what they said."

In early stages of the case, Ledewitz said the plaintiffs sought him out for his knowledge of constitutional law and history. He said he did not receive a payment or serve as counsel. As he does with the media, Ledewitz said he freely answered the plaintiffs' questions.

That history shows the court's literal interpretation of the environmental rights amendment could affect other aspects of state law, Ledewitz said. It could make passage more difficult for one such bill to loosen the state's decades-old endangered species laws as energy companies and developers want. The decision also could open the state to legal claims it is not doing enough to limit industrial greenhouse gas emissions, he said.

Last week, the Corbett administration asked the court to reconsider its ruling. In a news release, the administration's top lawyer said the high court had overstepped its authority.

"In announcing a never-before-employed balancing test against which the constitutional validity of the law is to be judged, the Pennsylvania Supreme Court made its own sweeping factual findings regarding the impact of Act 13, none of which finds any support in the sparse and uneven factual record that was made before Commonwealth Court," Corbett's General Counsel James D. Schultz said in a statement.

The court's decision did not strike down the entire law — for now. It kept intact the impact fee industry pays the state for extracting gas. It also left in the mandate industry disclose the chemicals it uses in the "fracking" process as it bores through deep underground rock to reach gas deposits. But those issues could be decided by Commonwealth Court, which the Supreme Court tasked with determining if the remaining portions of Act 13 were valid if the law's overriding zoning provisions are not.